TERMS & CONDITIONS

These Terms and Conditions apply between:

Increasingly Technologies Limited a company registered in England and Wales with company number 10508200, whose registered office is at 7 Peacock Place, London, N1 1YG, England and the Customer.

The parties agree as follows:

 

1. Definitions

   In this Agreement the following terms shall have the following meanings:

   “Agreement”	means these Terms and Conditions together with the Schedules and any other documents referred to in the Agreement;
   “Authorised Users”	means employees, agents, consultants or independent contractors of the Customer who have been expressly authorised by the Customer to receive a password in order to access the Solution or Services online;
   “Bug”	means an unwanted or unintended property of the Solution that can be reproduced and causes the Solution to malfunction but does not affect the availability of the Solution;
   “Business Day”	means Monday to Friday excluding any national holiday in the UK;
   “Business Hours”	means 09.00 – 18.00 local UK time, on each Business Day;
   “Client”	means any entities or persons to whom the Customer provides its services;
   “Company”	means Increasingly Technologies Limited;
   “Confidential Information”	means any and all information in any form whatsoever relating to the Company or the Customer, or the business, prospective business, finances, technical process, computer software (both source code and object code) and IPR of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession as a result of this Agreement or provision of the Solution or Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
   “Consequential Loss”	means pure economic loss, special loss, losses incurred by any Client or other third party, losses arising from business interruption, loss of business revenue, goodwill or anticipated savings, losses whether or not occurring in the normal course of business, costs of procuring substitute goods or product(s) or wasted management or staff time;
   “Customer Data”	means all data imported into the Solution or Services for the purpose of using the Solution and Services or facilitating the Customer’s use of the Solution and Services;
   “Customer”	means the customer named in the Order Form;
   “Documentation”	means the training materials and user manuals relating to the use of the Solution or Services, as well as any additional documentation that the Company specifically creates for the Customer or otherwise provides to the Customer to assist in the correction of any issue with the Solution or Services;
   “DPA”	means the data protection agreement of the Company published at www.increasingly.com/dpa as amended from time to time;
   “Effective Date”	means the date set out in the Order Form;
   “Feedback”	means feedback, innovations or suggestions created by Authorised Users or Clients regarding the attributes, performance or features of the Solution or Services;
   “Fees”	means the fees set out in the Order Form payable by the Customer during the Term plus any Other Fees added to this Agreement during the Term;
   “Force Majeure”	means anything outside the reasonable control of a party, including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage (including where the Company ceases to be entitled to access the Internet for whatever reason) transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency;
   “Functional Description”	means the description of the Solution set out in the Order Form;
   “Illegal Content”	means any data or content which is defamatory, or constitutes a breach of the IPR or legal rights of any third party;
   “Implementation Fee”	means the fee set out in the Order Form for the implementation of the Solution;
   “Implementation Period”	means the implementation period set out in the Implementation Plan;
   “Implementation Plan”	means the written document setting out the detailed implementation of the Solution agreed with the Customer after the Effective Date;
   “Implementation Services”	means the services set out in the Implementation Plan;
   “Initial Term”	means the initial term set out in the Order Form starting from the Effective Date;
   “IPR”	means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
   “Order Form”	means the order form signed by the parties;
   “Other Fees”	means any additional fees payable by the Customer during the Term of this Agreement set out in any order form signed by the parties. The amount of such additional fees shall be calculated on a Time and Materials Basis unless stated otherwise in such order form;
   “Other Services”	means any additional services to be provided to the Customer during the Term of this Agreement set out in any subsequent order form signed by the parties and added to this Agreement after the Effective Date;
   “Privacy Policy”	means the Privacy Policy of the Company published at www.increasingly.com/privacypolicy as amended from time to time;
   “Services”	means the Implementation Services and the hosting, maintenance and support services for the Solution plus any Other Services added to this Agreement during the Term;
   “Solution”	means the software application set out in and described in the Order Form;
   “Statistical Data”	means aggregated, anonymised data derived from the Customer, Authorised User or Client’s use of the Solution or Services which does not include any personal data or Customer Confidential Information;
   “Subscription Fee”	means the fee set out in the Order Form payable by the Customer to the Company for the Solution and Services during the Term;
   “Term and Conditions”	means these terms and conditions;
   “Term”	means the term set out in the Order Form;
   “Time and Materials Basis”	means the Company’s standard daily consultancy rates;
   “Travel Fees”	means all reasonable costs associated with any travel and subsistence expenses incurred by the Company (or its employees, permitted subcontractors or agents) in performing its obligations under this Agreement (including during the Implementation Period);

2. Services and Solutions
   1. The Customer engages the Company and the Company agrees to provide the Solution, Services and Documentation to the Customer in accordance with the terms of this Agreement from the Effective Date for the Term.
   2. If the Customer wishes to purchase additional Services after the Effective Date, such Services shall be set out in one or more additional Order Forms, which will be signed by both parties and incorporated into this Agreement.
3. Licence to use the Solution and Services
   1. Subject to the Customer’s payment of the Fees, the Customer is granted a non-exclusive, non-transferable licence to permit Authorised Users and Clients to use the Solution and Services (including any associated IPR and Confidential Information of the Company) from the Effective Date for the Term for the Customer’s internal business operations. Such licence permits the Customer to make copies of software or other information necessary for the Customer to receive the Solution and Services via the Internet. Where open source software is used as part of the Services, such software use by the Customer will be subject to the terms of the open source licences. No additional implied rights are granted beyond those specifically mentioned in this clause 3.1.
   2. Not withstanding the Customer’s statutory rights, no right to modify, adapt, or translate the Solution or Services or create derivative works from the Solution or Services is granted to the Customer.
   3. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Solution or Services. Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Solution or Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Solution or Services interoperable with other software the Company will provide access to any relevant source code or information provided that the Customer makes a written request identifying the relevant details of the Solution or Services with which operability is sought and the nature of the information needed. The Company has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
   4. Unless otherwise specified in this Agreement, the Solution and Services are provided and may only be used in conjunction with:
      1. The Customer’s existing systems and applications in order to facilitate the Customer’s transactions with Clients;
      2. Providing access to the Solution and Services solely to Clients and Authorised Users; and
      3. Accessing and using the Documentation as necessary to enable use of the Solution and Services.
   5. The Customer may not:
      1. Lease, loan, resell, assign, licence, distribute or otherwise permit access to the Solution and Services; or
      2. Use the Solution or Services to provide ancillary services related to the Solution or Services; or
      3. Permit access to or use of the Solution or Services by or on behalf of any third party; except as permitted in this Agreement
   6. The Company reserves the right to electronically monitor the Customer’s use of the Solution and Services.
4. Intellectual Property Rights
   1. All IPR and title to the Solution, Services and Documentation (save to the extent these incorporate any Customer Data, Customer IPR or third party owned item) shall remain with the Company and/or its licensors and subcontractors. No interest or ownership in the Solution, Services, Documentation, IPR or otherwise is transferred to the Customer under this Agreement.
   2. The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing IPR and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants the Company a non-exclusive, licence to use Customer Data, Customer IPR and any third party owned item from the Effective Date for the Term to the extent required for the provision of the Solution and Services.
   3. The Customer is not allowed to remove any proprietary marks or copyright notices from the Solution or Services.
   4. The Customer grants the Company a non-exclusive, non-transferable, revocable licence to display the Customer’s name, logo and trademarks, as designated and/or amended by the Customer from time to time and as required in the creation of correspondence, documentation and website front ends in the provision of the Services.
   5. The Customer assigns all rights, title and interest in any Feedback to the Company. If for any reason such assignment is ineffective, the Customer shall grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.
   6. The Customer grants the Company the perpetual right to use Statistical Data and nothing in this Agreement shall be construed as prohibiting the Company from using the Statistical Data for business and/or operating purposes, provided that the Company does not share with any third party Statistical Data which reveals the identity of the Customer, Authorised Users or Clients, or Customer’s Confidential Information.
   7. The Company may take and maintain technical precautions to protect the Solution and Services from improper or unauthorised use, distribution or copying.
5. Term and Termination
   1. This Agreement shall commence on the Effective Date for the Term and shall continue until either party terminates the Agreement in accordance with its rights set out below or in the Order Form.
   2. The Company may terminate this Agreement or the provision of the Solution or Services with immediate effect if:
      1. The Customer has used or permitted use of the Solution and Services other than in accordance with this Agreement; or
      2. The Company is prohibited under applicable law, or otherwise from providing the Solution or Services.
   3. Either party may terminate this Agreement immediately, with cause, if the other party:
      1. Ceases or threatens to cease or carry on business; or
      2. Is unable to pay its debts or enters into compulsory insolvency or voluntary liquidation; or
      3. Convenes a meeting of its creditors or has a receiver, manager or similar official appointed in respect of its assets; or
      4. Has an administrator, receiver, manager or similar official appointed; or
      5. Is affected by a similar event under the law of any other jurisdiction; or
      6. A Force Majeure event lasts for more than 28 days.
   4. Either party may terminate this Agreement for material breach of any term by giving the breaching party written notice. However, where the breach is capable of remedy, provided that the breach is specified and remedy of the breach is requested, the notice shall only be effective if the breaching party fails to remedy the breach within 10 days of receipt of the notice.
   5. Termination of this Agreement for any reason shall not affect the accrued rights of the parties arising under this Agreement and in particular without limitation the right to recover damages against the other. Clauses 3. (Licence), 4. (Intellectual Property Rights), 5. (Term and Termination), 8. (Fees and Invoicing), 9. (Payment Terms), 10. (Confidential Information), 11. (Data Protection) 13. (Liability), 14. (Indemnities), 16. (Assignment). 17. (Relationship between the Parties), 19. (Miscellaneous), 20. (Dispute Resolution) and 21. (Governing Law and Jurisdiction) shall survive the expiry or termination of this Agreement and shall remain in force and effect.
   6. Upon termination of this Agreement the Customer shall promptly pay the Company all unpaid Fees and all licences granted under the Agreement shall terminate on the effective date of termination. The Company shall:
      1. Cease providing the Solution and Services to the Customer;
      2. At the option of the Customer, following receipt of a request from the Customer delete (in accordance with the terms of the DPA) or return all Customer Data stored in the Company’s database in its then current format, free of charge, provided that such request is made within 30 days of termination. If the Customer requires any Customer Data to be returned in a different format the Company reserves the right to charge for this additional service on a Time and Materials Basis.
6. Provision of Implementation Services
   1. The Company shall implement the Solution during the Implementation Period in accordance with the Implementation Plan.
   2. The Implementation Period shall be extended by the length of any delay in the implementation process if:
      1. The Customer changes its requirements after the Implementation Plan has been agreed; or
      2. The Company’s ability to comply with the Implementation Plan is impaired by any act or omission of the Customer or breach of this Agreement, which shall include but not be limited to the Customer failing to provide timely support and resources or having a lack of bandwidth or other technical requirements; or
      3. The parties agree to extend the Implementation Period; or
      4. A Force Majeure event occurs.
   3. The Company may increase the Implementation Fee should the Implementation Period be extended for any of the reasons set out in clause 6.2. The price increase shall be in proportion to the extension of time if the Implementation Fee is payable in advance. If the Implementation Fee is payable in instalments, then the price increase shall be on a Time and Materials Basis.
   4. During the Implementation Period the Customer shall test the Solution for defects and compliance with the Implementation Plan. Such tests shall include testing the material software programme features. Any defects that are discovered shall be notified to the Company in accordance with the Implementation Plan.
   5. The Customer shall provide the Company with all appropriate test data in accordance with the Implementation Plan.
7. Third Party Providers and Interfaces
   1. The Customer acknowledges that use of the Solution and Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Company makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Company. The Company recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Company does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Solution or Services.
   2. The Company shall make all reasonable efforts to ensure that any interface or integration to a third party provider or system used by the Customer operates correctly. The Customer acknowledges that the successful operation of any interface or integration is dependent upon the technical set up of the third party systems, and the Customer agrees that the Company cannot be held liable for any failures in the operation of the interface or integration. Accordingly, the Company shall have no liability or obligation whatsoever to the Customer in relation to the content on, or use of, or connection with any third party website made available via use of the Solution and Services.
   3. If an issue arises with regard to the effective operation of an interface or integration the Company will use all reasonable efforts to resolve the issue at the earliest opportunity.
   4. The Customer acknowledges that:
      1. It is responsible for ensuring that it has paid and instructed the third party to co-operate with the Company; and
      2. The Company has no liability whatsoever to the Customer for any problems with any interface or integration resulting from acts or omissions of the Customer or the third party.
8. Fees and Invoicing
   1. The Company shall invoice the Customer the Fees set out in the Order Form. All invoices shall be issued and paid in the currency stated in the Order Form. All Fees exclude any Value Added Tax or other taxes legally payable on the date of the invoice, which shall be paid by the Customer in addition, where applicable.
   2. All Fees shall be invoiced as set out in the Order Form.
   3. Travel Fees, incidental costs and other expenses shall be invoiced in addition to the Fees in arrears, as and when they arise.
   4. Fees remain fixed for the Initial Term of the Agreement. After the Initial Term, the Company may if applicable on each subsequent anniversary of the Effective Date, increase the Fees by no more than 2% above the UK Retail Price Index.
   5. Where termination is prior to expiry of 6 months from the Effective Date, any Implementation Fee, as set out in the Order Form, shall be chargeable and invoiced. All Fees shall be payable within 10 days of the date of invoice.
   6. Where the Solutions & Services for Increasingly Bundling, as set out in the Order Form, is lower in scope than the Functional Description, the Subscription Fee shall have a minimum of £500 each month.
9. Payment Terms
   1. The Customer shall pay the Company the Fees for the provision of the Solution and Services under this Agreement.
   2. Unless stated otherwise in the Order Form or Terms and Conditions, payment of all Fees is due within 30 days of the date of properly rendered, undisputed invoices and shall be without prejudice to any claims or rights which the Customer may have against the Company. If the Customer believes that any invoice is incorrect, it must notify the Company in writing within 14 days of the invoice date.
   3. Where payment of any Fee is not received within 14 days of the due payment date, the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Solution and Services and the Company shall be under no obligation to provide any or all of the Solution or Services while the invoice(s) concerned remains unpaid. The Company shall be entitled to charge interest on overdue Fees at the applicable statutory rate.
   4. The Company reserves the right to recover any costs and reasonable legal fees it incurs in recovering overdue payments.
10. Confidential Information
    1. Each party may use the Confidential Information of the other only for the purposes of this Agreement. Each party must keep confidential all Confidential Information disclosed to it, except where the recipient of Confidential Information is required to disclose the Confidential Information by law to any regulatory, governmental or other authority with relevant powers to which either party is subject.
    2. Each party may disclose the Confidential Information of the other party to those of its employees and agents who need to know the Confidential Information for the purposes of this Agreement, but only if the employee or agent is bound by confidentiality undertakings equivalent to those set out in this Agreement.
    3. Both parties agree to return (or destroy) all documents, materials or data containing Confidential Information to the disclosing party without delay upon completion of the Services or termination or expiry of this Agreement.
    4. The obligations of confidentiality under this Agreement do not extend to information that:
       1. Was in the other party’s lawful possession before the negotiations leading to this Agreement; or
       2. Is, or after the Effective Date, becomes publicly known other than through any act or omission of the receiving party; or
       3. Is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
       4. Is independently developed by the receiving party, which independent development can be shown by written evidence; or
       5. Is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
    5. If either party is required to disclose any Confidential Information pursuant to clause 10.4.5 such party shall, where lawfully permitted to do so:
       1. Promptly consult with and take into account any comments from the other party prior to making any disclosure; and
       2. Work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.
    6. The parties acknowledge and agree that without prejudice to the general confidentiality provisions in this clause 10 and without limitation, all information falling within the definition of Confidential Information as set out in clause 1 of this Agreement and any information which is supplied by the disclosing party to the receiving party pursuant to this Agreement or the negotiation thereof is:
       1. Confidential Information the disclosure of which by the receiving party would be an actionable breach of confidence; or
       2. A trade secret of the disclosing party; and
       3. Information, the disclosure of which would be likely to prejudice the commercial interests of the disclosing party or of any other person.
11. Data Protection
    1. Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
    2. To the extent that personal data is processed when the Customer or Authorised Users use the Solution Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective obligations under applicable data protection laws and the terms of the DPA.
    3. If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
    4. Where the Company collects and processes personal data of the Customer, as a data controller, when providing the Solution and Services to the Customer, such collection and processing shall be in accordance with the Privacy Policy.
12. Representations and Warranties
    1. Each party warrants and represents that:
       1. It has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder;
       2. The execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party and is in accordance with any applicable laws; and
       3. It shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement.
    2. The Company warrants to the Customer that it has the right to licence the Solution and Services.
    3. The Company warrants and represents that the Services shall be performed with reasonable skill and care and in a professional manner in accordance with good industry practice and that the Services will be provided in accordance with the terms of the Agreement.
    4. The Company warrants to the Customer that the Solution will operate to provide in all material respects the facilities and functions implemented by the Company as set out in the Functional Description. If there is a breach of this warranty, the Company shall use reasonable commercial endeavours, to correct any material defect or to replace the defective Solution. Notwithstanding the aforesaid, the Company shall only be obliged to remedy any material defect if:
       1. The Customer notifies the Company in writing immediately upon discovering the defect; and
       2. Following the Company’s examination of the Solution, it is established that such a defect exists.
    5. The warranties in clauses 12.2 to 12.4 inclusive shall not cover deficiencies or damages relating to:
       1. Any third party components not provided by the Company; or
       2. Any third party provided connectivity necessary for the provision or use of the Solution and Services; or
       3. Compliance with third party software or products, non-Company programmes or data used in combination with the Solution or Services except as set out in the Implementation Plan; or
       4. A failure of the Solution to conform with the Functional Description caused by the use or operation of the Solution by the Customer with an application or in an environment other than that set out in the Implementation Plan; or
       5. Modifications made to the Solution not carried out by the Company.
    6. No warranty is made regarding the results the Customer can achieve from using the Solution and Services or that the Solution and Services will operate uninterrupted or error free.
    7. The Customer warrants that it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement.
    8. The Customer warrants and represents that it and the Authorised Users shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Solution and Services granted under this Agreement is limited as set out under this Agreement. In particular the Customer and Authorised Users shall treat any identification, password or username or other security device for use of the Solution and Services with due diligence and care and take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons. Any breach of the above shall be immediately notified to the Company in writing. The Customer shall be liable for any breach of this Agreement by an Authorised User or Client.
    9. The Customer warrants and represents that it shall ensure that its network and systems comply with the relevant specification provided by the Company from time to time and that it is solely responsible for procuring and maintaining its network connections and telecommunications links from the Customer’s systems to the Company’s data centres and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet.
    10. All third party content or information provided by the Company via the Solution or Services, for example prices is provided “as is”. The Company provides no warranties in relation to such content or information and shall have no liability whatsoever to the Customer for its use or reliance upon such content or information.
    11. Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law.
13. Liability
    1. Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by their negligent act or omission or wilful misconduct.
    2. Neither party shall be liable for any Consequential Loss arising out of or related to this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, even if the party was advised of the possibility of such damages.
    3. Neither party shall be liable for any loss of profits (whether categorised as direct or indirect) arising out of or related to this Agreement, whether based on contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, even if a party was advised of the possibility of such damages.
    4. Subject to clauses 13.1 to 13.3 inclusive the total liability of the Company to the Customer in aggregate (whether in contract, tort or otherwise) for any and all claims relating to or arising under this Agreement or based upon any claim for indemnity or contribution shall be limited to the total Fees (excluding all taxes) paid by the Customer to the Company during the 12 month period prior to the date on which any such claim arose. If the duration of the Agreement has been less than 12 months, such shorter period shall apply.
    5. The Customer shall be liable for any breaches of this Agreement caused by the acts, omissions or negligence of any Authorised Users or Clients who access the Services and Solutions as if such acts, omissions or negligence had been committed by the Customer itself.
    6. The Customer shall not raise any claim under this Agreement more than 1 year after:
       1. The discovery of the circumstances giving rise to a claim; or
       2. The effective date of termination or expiry of this Agreement.
    7. The parties acknowledge and agree that in entering into this Agreement, each had recourse to its own skill and judgement and have not relied on any representation made by the other, their employees or agents.
14. Indemnities
    1. The Company shall at its own expense, defend or at its own option settle any claim brought against the Customer by a third party on the basis of an infringement of any IPR by the Solution or Services (excluding any claim deriving from any Customer provided item) and pay any final judgment entered against the Customer on such issue or any settlement thereof, provided that:
       1. The Customer notifies the Company promptly of each such claim;
       2. The Company is given sole control of the defence and/or settlement; and
       3. The Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
    2. If all or part of the Solution or Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company shall at its own expense and sole discretion:
       1. Procure for the Customer the right to continue to use the Solution or Service or the affected part thereof;
       2. Replace the Solution or Service or affected part with another suitable non-infringing service or software;
       3. Modify the Solution or Services or affected part to make the same non-infringing.
    3. The Company shall have no obligations under clauses 14.1 and 14.2 above to the extent that a claim is based on:
       1. A modification of the Solution or Services by anyone other than the Company;
       2. The combination, operation or use of the Solution or Services with other services or software not provided by the Company if such infringement would have been avoided in the absence of such combination, operation or use; or
       3. The use of the Solution or Services in any manner inconsistent with this Agreement; or
       4. The negligence or wilful misconduct of the Customer.
    4. Clauses 14.1 to 14.3 state the Customer’s sole and exclusive rights and remedies and the Company’s entire obligations and liability for any claims made under these clauses.
    5. The Customer shall defend, indemnify and hold the Company and its employees, sub-contractors or agents harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from:
       1. Any claimed infringement or breach by the Customer, an Authorised User or a Client of any IPR with respect to use of the Solution or Services outside of the scope of this Agreement; or
       2. Use by the Company of any Customer Data or Customer, Authorised User or Client provided item, in particular storage or publication on the Internet of any Illegal Content; or
       3. Any access to or use of the Solution or Services by an Authorised User, a Client or a third party;
       4. Breaches of data protection law or regulations or the terms of the DPA by the Customer, an Authorised User or a Client; and
       5. Any breach of the terms of this Agreement by an Authorised User or a Client; and the Company shall be entitled to take reasonable measures in order to prevent Illegal Content from being published on the Internet or breaches of third party rights from continuing.
    6. Subject to clauses 14.1 to 14.5 inclusive, each party (“the first party”) indemnifies and undertakes to keep indemnified the other party, its officers, servants and agents (“the second party”) against any costs or expenses (including the cost of any settlement) arising out of any claim, action, proceedings or demand that may be brought, made or prosecuted against the second party under any indemnity contained in clause 14. Such indemnity extends to and includes all costs, damages and expenses (including legal fees and expenses) reasonably incurred by the second party in defending any such action, proceeding claim or demands.
15. Security
    1. The Company shall permit the Customer to specify which Authorised Users or Clients may access the Services and Solution through its standard application security options.
    2. The Customer, Authorised Users and Clients must ensure that each password is only used by the user to which it has been assigned. The Customer is responsible for any and all activities that occur under the Customer’s account and via the Customer’s passwords. The Customer will immediately notify the Company if the Customer becomes aware of any unauthorised use of the Customer’s account, the Customer’s passwords or breach of security known to the Customer. The Company shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements.
    3. The Company may suspend access to the Solution and Services, or portion thereof, at any time, if in the Company’s sole reasonable discretion, the integrity or security of the Services or Solution is in danger of being compromised by acts of the Customer, Authorised Users or Clients. The Company shall give the Customer 24 hours prior written notice, where possible, before suspending access to the Services and Solution, giving specific details of its reasons.
16. Assignment
    1. No party may assign or transfer its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to:
       1. Any company in the Company’s group of companies; or
       2. Any entity that purchases the shares or assets of the Company as the result of a merger, takeover or similar event.
17. Relationship between the Parties
    1. The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
18. Contacts
    1. The Customer shall provide a designated application support contact who will be responsible for and have sufficient information to respond to support questions.
    2. The Customer shall provide a designated billing contact with all relevant contact information to respond to billing and payment questions regarding the Services.
19. Miscellaneous
    1. Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
    2. Except with respect to the Customer’s obligation to pay the Fees, if a party is wholly or partially unable to comply with its obligations under this Agreement due to Force Majeure, then that party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement.
    3. In the event of any inconsistency between the content of the Terms and Conditions, the Order Form, the DPA and the Privacy Policy, the Order Form shall prevail followed by the Terms and Conditions, the DPA and then the Privacy Policy. If after the Effective Date any subsequent order form is signed by the parties and added to this Agreement during the Term and there is a conflict between the terms of such subsequent order form, its attachments and the Terms and Conditions, the last signed order form shall prevail over the terms of any previous order form and its attachments, unless specifically stated otherwise in the subsequent order form.
    4. This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
    5. Amendments to, this Agreement, shall be in writing and shall be deemed to have been duly given if sent by registered post to a party at the address given for that party in this Agreement. Notwithstanding the aforesaid, the Company may change or modify the terms of this Agreement upon giving the Customer 30 days notice via email. All changes shall be deemed to have been accepted by the Customer unless the Customer terminates the Agreement prior to the expiry of the 30 day period.
    6. The Company may refer to the Customer in marketing material, for example, use of the Customer’s name and logo on the Company website.
    7. Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
    8. Failure to exercise, or any delay in exercising, any right or remedy under this Agreement, or at law or equity, shall not be a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
20. Dispute Resolution
    1. The parties will use their respective reasonable efforts to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement and any breach of it.
    2. If any such dispute cannot be settled amicably through ordinary negotiations of the sales directors of each party, the dispute shall be escalated in writing to the chief technology officer of the Company and the chief financial officer of the Customer who shall in good faith try and resolve the dispute. If the dispute or difference is not resolved within 14 days of the dispute being escalated the parties shall then be entitled to pursue their claim in accordance with clause 21 below.
21. Governing Law and Jurisdiction
    1. This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.